# FILED August 9, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT JACKSON JUNE SESSION, 1999 CORY MYERS, ) C.C.A. NO. 02C01-9810- CC-00309 ) Appe llant, ) ) ) GIBSON COUNTY VS. ) ) HON. C. CREED MCGINLEY, STATE OF TENNESSEE, ) JUDGE ) Appellee. ) (Post-Convi ction)

ON APPEAL FROM THE JUDGMENT OF THE CIRCUI T COURT OF GIBSON COUNTY
FOR THE APPELLANT : FOR THE APPELLEE : MICHAEL R. HILL PAUL G. SUM MERS 1066 S. Main Street Attorney Generaland Reporter P.O. Box 679 Milan, TN 38358 PATRICI A C. KUSSMA NN Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243 CLAYBURN L. PEEPL ES Distri ct Attorney General BRIAN FULLER Assistant Distri ct Attorney General 110 s. College Street Suite 200 Trenton, TN 38382
OPINION FILED ________________________ AFFIRMED DAVID H. WELLES , JUD GE-2- 

# OPINION

The Defenda nt, Cory Mye rs, app eals th e Gib son C ounty Circu it Cour t’s denial of his pet ition for post- convicti on relief . Defendant confessed to ki lling a formermayor of Trenton, Tennessee during perpet ration of a burglar y. The Gibson Coun ty Gran d Jury in dicted De fendant for first degree felony murde r, espe cially aggrava ted burg lary, and a tte mpted espe cially agg ravated robb ery; fo r which the State provided noticeit would seek the death penalty. On October 10, 1997, Defen dant plea ded gu ilty to first degree felony m urder, and the trial court senten ced him to the Sta te’s recom mend ed term of life impriso nmen t.

Defendant filed his petiti on for post- convicti on relief on February 23, 1998. Following an evi denti ary he arin g on Au gus t 21, 1998, the tri al court de nied Defendant’s pet ition. In thi s appeal, Defendant argues that the tri al court erred by denying pos t-c o nviction relief because (1) he suffered the ineffective assistance of counsel prior to and du ring the gui lty pl ea hearing, and (2) his guilty plea wa s not kno wing an d volunta ry due to s uch ineffe ctive assista nce.

I. I NEFFECTIVE ASSI STANCE OF COUNSEL To determine whether counsel provi ded ef fecti ve assistance at tri al, the court must decide whether coun sel’s p erformance was wit hin the range of competence dema nded o f attorneys in crimina l cases. Baxter v. Rose , 523 S.W.2d 930, 93 6 (Ten n. 1975 ). To succee d on a claim that his counsel was ineffective at trial, a petiti oner bears the bur den of showing that

his counsel made
errors so serious t hat he was not f unctioni ng as counsel as guaranteed under the-3-

Sixth Amendment and that the def icient representat ion prejudi ced the petitioner, resulting i n a failure to pr oduce a reliable re sult. Strickl and v. Washington , 466 U.S. 668, 68 7 (1984 ); Coope r v. State , 849 S.W .2d 744 , 747 (T enn. 19 93); Butler
v. State , 789 S.W .2d 898, 899 (Tenn. 199 0). To satisfy t he seco nd prong the petiti oner must sho w a reas onab le prob ability tha t, but for c ouns el’s
unrea sona ble error, the fact finder would hav e had reasonable doubt regarding petition er’s guilt. Strickl and , 466 U. S. at 695. T his reaso nable p robability must be “suffic ient to underm ine confidence in the outcom e.” Harris v. S tate , 875 S.W .2d 662, 665 (Tenn. 199 4).

When reviewi ng trialcounsel’s ac tions, t his Court shoul d n ot use the bene fit of hind sight to seco nd-gu ess tria l strateg y and c riticize c ouns el’s tactics. Hellard v. State , 629 S.W .2d 4, 9 (Ten n. 198 2). Co unse l’s allege d error s sho uld be judged at t he time they wer e mad e in light of

all facts and ci rcumstances. Strickl and , 466 U.S . at 690; see Cooper 849 S.W.2d at 746.

This two-part

standard of measuring ineffecti ve assistance of counsel also appliesto claims arising o u t of the plea proces s. Hill v. Lockhart , 474 U.S. 52 (1985). The prejudice r equirement is

modified so t hat the petitioner “ must show that there is a reaso nable proba bility that, but for counsel’s errors he wo uld not have pleade d guilty and wou ld have insisted on going to trial.” Id. at 59.

If afforded a po st-conviction eviden tiary hearing by the tri al court , a petiti oner must d o more than merely pr esent evidence tending to show incompetentrepresentat ion and prej udice; hemust prove his factual allegat ions b y cl ear and convinc ing evidence . Tenn. Code Ann. § 40-30-210(f). When an1 Defense counsel filed a motion to suppress this confession on the basis of a v iolation of Defendant’s Sixth Amendment right to counsel. Th is motion d id not incl ude any othe r grounds for suppression. -4- evidentiary hearing is

held, fi ndings of fact made by that court are conclusive and binding on this Court

unless the ev idence preponderat es against th em. Cooper , 849 S.W.2d at 746 (cit ing Butler , 789 S.W .2d at 899).
Here, Defenda nt specifically argues tha t his trial counsel was ine ffective by faili ng to move (1) to change venue to another county and (2) to suppress his confession to police on t he grounds that he was incapable of

voluntarily giving a statem ent. 1 The trialcourt is sued w rit ten findi ngs accompanying it s order denying post-convi ction rel ief ; and on the i ssue of inef fectiv e assistance of
couns el, the cou rt conclud ed that [t]herecord clearl y demon strates that [trial counsel] wa s very vi g orous in his defense of the Petitioner. A full an d thorough i nvestigat ion was conducted, as wel l as extens ive communicati on between the Attorney and the de fenda nt. Th e reco rd fully suppo rts thatthe defendant

was apprised of

al l hi s Cons titutional rights includi ng right to trial by jury. Num erous discussi ons were had between the Petition er and h is Attorne y conce rning all of his rights and whet her a p lea of guilty m ight be in h is best intere st. Petition er’s counsel engaged i n full and complete d iscove ry and kept the Defendant informed at all times. The co urt fin ds that tactical decisions wer e made conc erning poss ible change of venue, which the defend ant fully con curred in
.

Defendant contests the tri al co urt’ s findi ngs, however, assertin g that counsel should have moved to suppress his confession because he “suffer s from variousmental disor

ders such a s Sch izoph renifor m Dis order , Atten tion De ficit Hypera ctivity Disorder, and auditory hallucina tions.” Furthermore, he attests that h is education en ded in the ninth g rade and tha t he can neithe r r ead n or writ e well. The con fession was w ritten by a member of law enforcement and affirmed2 More accurately, Def endant stated that a change of venue would have “affected” his decision to plead guilty. How ever, to obtain relief bas ed upon ineffective assistance of counsel involvinga guilty plea, Defendant must show a reasonab le probability that, but for counsel’s deficientrepresentation, he would have insisted on going to trial. Hill v. L ockhart , 474 U.S. 52 (1985). This shortcoming is not e ssential, however, to

our decisionaffirming the denial of postconviction relief. -5- by Defendant by si gnature, and he n ow claims that he did not have the mental capac ity or intell igence to sign t he confession dueto his psychologicaldisorders, limitededuca tion, and b orderline intellectual fu nctioning
. Moreover, he testi fied at post-convi ction that (1 ) had he better understood thetrialprocedures and discovery motions, (2 ) had his counsel s uccessfully moved for supp ressio n of his confession, or (3) h ad c ouns el m o ved f or a change of venu e to avoid t he passions and prejudi ces of a Gibson County jury, he would have insi sted on going to trial rather than p leading guilty. 2

The record on post-c onvictio n reflec ts that, c ontrar y to De fenda nt’s allegations, his trial coun sel, T om Cr ider, testifi ed he did not tell Defendant the only way to avoid the d eath pena lty was a guilty plea. Crider cl aimed, “I mig ht have personall y thought t hat [a guil ty plea]would have been the wiser course for him to have taken in the case , but i t always had to be hi s option on what he wanted to do.” In additi on, Crider attested to havi ng interv iewed a number of al ibi witnesses, perhaps the strongestof whom informed the investigator to the effect thathe would not lie for Defendant. Crider alsotestified that he , his sta ff, or his investigators woul d have discus sed with De fendant the res ults of all discovery, includi ng the ball istics report showi ng that the murder weapon had been traced to Defen dant.-6- Crider stated th at he and Defendant did discu ss filing a m otion to change venue; but after he informed Defendant that a Gibson Count y jury had never returned a sentence of deat h against a member of t he community, Defen d ant decided against fil ing su ch a m otion. Cr ider remembered dis cussing tr ial procedure with Defendant , incl uding th e right to testif y, because he recalled warning Defendant

he would also be s ubject to cross examinat ion. In addit ion, Crider testified that h e advised Defendant about his r ight to ap peal but caut ioned him regarding the rare success ofappeals by cr iminal defendants. Fi nally, Crider testif ied that the defens e team explained t o Defendant that

his tri al would be a two-part proc ess an d that a jury w ould de cide wh ether he received the dea th penalty. Cride r stated , “I’m ab solute ly certain thatI never . . . tol d him that al l he could do wa s plead guilty.”

When asked whether Defendant ha d un derstood his rights andthe conside rations invo lved in a de cision to plead guil ty or go to tri al, Cri der stated, [Y]ou do the best j ob you can in co mmunicati ng and we went to—we put in a lot

of extra effort to try to insure as bes t we could that C ory [Myers] was understandin g and that was a part

of the r eason that

we had some of his family invol ved in the pr ocess s o th at whil e we might think

that we we re ex plaini ng things and t hat he understo od the m, if ther

e were t hings t hat weren’t understood i t would be broughtba ck to our atte ntion o r the fam ily could explain them in ways that he woul d un dersta nd. . . . My impression was t hat he understood what we we re trying to conve y to him about the process thathe was involved in and abou t the fac ts and limitatio ns of h is case. We conclud e that the re cord fully su pports th e findings of the trial court; Defen dant ha s not pro ven othe rwise by c lear and convincin g eviden ce.

II. VOLUNTARY AND KNOWING PLEA-7- Defendant a rgu es next that because he received the i neffective assi stance of coun sel, his g uilty plea was n either v olunta ry nor in telligen t. Fir s t, we have
conc lu ded above that Defendant did not suffer the ineffect ive assistance o f
coun sel; therefore , th is rel ated all egation must fail. Second, upon a thoroug h review of t he p ost-convi ction record, we determine that no ot her unalleged infirmity disturb s the volun tary and in telligent na ture of De fendan t’s plea.

The “core requi rement” of federal constit utional law rega rding the validity of guilty pleas is t hat “no guilty plea be acce pted without an affirmative showing thatit was intelligent and volun tary.” Fontaine v. United States , 526 F.2d 514, 516 (6th Cir. 1975) (cit ing Boykin v . Al abama , 395 U.S . 238 (19 69)). In its exhaustive and com prehensive e valuation of the requ irements for a volun tary, intell igent pl ea of guil t, the Tennessee Supr eme Court stated, [A] cou rt charged with determini ng whether . . . pl eas w er e “volu ntary” and “in telligen t” mus t look to variou s circu msta ntia l factors, such as the relative intel ligence of the defendant ; the degree of his famil iarit

y with criminal pro ceedings; whet her he was represented by co mpetent cou nsel and had the oppor tunity to confer with couns el abou t the option s available to him; the extent of advice from counsel and thecou rtcon cer nin g th e ch arg es a gai nst him ; and the reason s for his de cision to ple ad guilty, inclu ding a de sire to avoid a greate r pena lty that m ight res ult from a jury tria l. Blank ensh ip v. State , 858 S.W.2d 897, 904 (Tenn. 1993) ( citing Caudill v . Jago , 747 F.2d 1 046, 1052 (6th Cir. 1984)).
Rega rding the voluntary nature of Defendant’s gui lty pl ea, the po st convicti on court found,

A review of

testimony t

aken underoath from the Pet itioner at the time h is plea of gui lty was submi tted reveals he was questioned at some length pri or to the acceptance of the pl ea by the court. The court went into s ome detail to determine i f in fac t there had b ee n any coercion or

if ther e was anything t

o indicate that theple a was-8- anyth i ng except completely vol untary. The testimony taken under oath as well as t he court’s observati ons of the defendant during the taking of the ple a indic ate tha t the ple a was entere d into fre ely and volunta rily and there wasnothing wha tsoever to indicate to the court thatthe Pe titioner h ad be en co erced in any way [sic] . The Petition er’s testimon y in t he pre sent h earing is diam etrically opposed to h is earli er testimony given under oath and i s also contrary to the testimony given by the attorney that represented him throughout

th e entire criminal process. The cour t finds the defen dant’s presenttestimony lacks any cr

edibil ity and f urther f inds the plea of guilty entere d on O ctobe r 10, 19 97, wa s don e kno wingly and volu ntarily by the D efenda nt.

The record ful ly supports the dec ision of the tri al court. Exhibit 1 to the post-convi ction record consi sts of a t ranscript of Defendant’ s guilt

y plea heari ng. Regarding the volun ta r y nature of the plea, the transc ript r eflects the foll owing colloquy bet

ween Defendant and the t rial j udge: THE COURT: Mr . Myer s, it’ s been indicated to the Court that you may wish to enter a plea of guil ty to t he charges against you. Is that correct? MR. MY ERS: Ye ah. Yes, sir. THE COUR T: First of all, is thi s what you want to do? MR. MY ERS: Ye s, sir. THE C OUR T: Are you d oing so freely and voluntarily? MR. MY ERS: Ye s, sir. TH E COU RT: Do you know w hat I mean when I say freely an d voluntarily? MR. MYERS: On my own. THE COUR T: Yes, sir . Are you doi ng this on your own? MR. MY ERS: Ye s, sir. THE COU RT: H as anyo ne force d you to enter this plea agai nst your will? MR. MY ERS: N o, sir. THE C OUR T: Are you free of alcohol and d rugs today? MR. MY ERS: Ye s, sir.

At the evident iary hear ing, Defendant testified that h e felt pr es sure d to plead guilty beca use of the pressu re Cride r placed u pon D efenda nt’ s grandmothera nd the pressure that she, in turn, placed on him. He stated, “[Crider] was taking her to an early grave by t he pressure he was put ting on her-9-

and I got tired of it.” When Cr ider was asked whet her he encouraged Defe ndan t’s grandmother to per suade him to plead gu ilty , Crider r esponded that he did not—that he merely explai ned to her th e grim chance for succes s at tri al in light of the w eight of evid ence a gainst D efenda nt.
Testimonyby Cride r at the evide ntiary hea ring revea ls that Defe ndant
came before th e trial court w ith the inten t to plead guilty prio r to the tim e his actual plea was ent ered. O n that p reviou s day, D efend ant rec onsid ered h is decision to p lea d gui lty, and he di d not ple ad un ti l s ome mo nths lat er . We conclude D efendant has not presented cl ear and convinc ing evidencethat the trial court erred by finding the plea rendere d voluntarily.

We furthermore conclude that Defendant’s pl ea was kno w ing and intell igent

. Though he contends that he did not f ully comprehend the proceedin gs or the nature of

his plea, the record ind icates to th e contra ry, despite his li mited education and alleged di sorders. At his plea hearing, Defendant attested to the followi ng: THE COUR T: Do you fully understand what you’re doi ng? MR. MY ERS: Ye s, sir. THE COURT: Have you d iscuss ed the matte r fully and thorou ghly with your

attorney , Mr. Cri der, of t he Public Defender’s Offi ce? MR. MY ERS: Ye s, sir. THE COURT: Do you understand the nature of these charges and have you discus sed w ith him fully any possibl e defenses that might be raised on your b ehalf? MR. MY ERS: Ye s, sir. THE COURT: . . . Do you understand that you’ve been c harged with first degree murder and what is known as felony

murder; that

is, t he comm ission of a hom icide during the co mmissio n of a felony? MR. MY ERS: Ye s, sir. THE COURT: Do you understand t hat the range of punishment for first degre e murder in the State of Tennessee could be deat h by electrocut ion? MR. MY ERS: Ye s, sir.-10- . . . . THE COURT: Have you talked to your attorney about your constituti onal rights? MR. MY ERS: Ye s, sir. The trialjudge proceeded to question Defendant regarding hi s knowledge and understandingof each consti tutionalright whi ch he would waive upon pleading guilty. Defendant each time responded t hat he understood and f inally affirmed before the court that he w as guilty of the offense a t bar. W e find tha t Defe ndan t’s plea was en tered intelligently.

Because we have det ermined that Defenda nt suffered no ine ffective assistance of counsel and t hat his gui lty pl ea was ent ered both voluntar ily and intelligently, we affirm the decis ion of the tria l court den ying pos t-conviction relief.

____________________________________ DAVID H. WELLES , JUD GE

CONCUR:

___________________________________ DAVID G. HAY ES, J UDGE

___________________________________ NORMA McGE E OGLE, JUDGE